Citation Nr: 0700220
Decision Date: 01/05/07 Archive Date: 01/17/07
DOCKET NO. 03 34-221A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUES
1. Entitlement to service connection for the cause of the
veteran's death pursuant to 38 U.S.C. § 1310, to include as a
result of exposure to ionizing radiation.
2. Entitlement to Dependency and Indemnity Compensation
(DIC) pursuant to 38 U.S.C. § 1318.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
S. Bush, Associate Counsel
INTRODUCTION
The veteran served on active duty in the United States Navy
from March 1956 to January 1958. He died in March 2001. The
appellant is the veteran's surviving spouse.
This case comes to the Board on appeal of an August 2003
rating decision of the Department of Veterans Affairs (VA)
Regional Office in Chicago, Illinois (the RO), which denied
the appellant's claims for service connection for the cause
of the veteran's death pursuant to 38 U.S.C. § 1310 and DIC
benefits pursuant to 38 U.S.C. § 1318.
The appellant was scheduled to appear for a Travel Board
hearing in July 2006. However, she failed to report for this
hearing and provided no explanation for her failure to
report. Her hearing request, therefore, is deemed withdrawn.
See 38 C.F.R. §§ 20.702(d); 20.704(d) (2006).
Issue not on appeal
In a May 2002 rating decision, the RO denied the appellant's
claim of entitlement to benefits under the provisions of 38
U.S.C. § 1151 for the cause of the veteran's death. She
submitted a timely notice of disagreement in July 2002. A
statement of the case was issued September 11, 2003; however,
the appellant failed to submit a timely substantive appeal by
November 12, 2003. See 38 C.F.R. § 20.302(b) (2006).
Accordingly, the May 2002 rating decision is final. 38
U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1103
(2006).
The appellant submitted argument on the 1151 claim in April
2004, and in an April 2005 decision, a Decision Review
Officer (DRO) determined that new and material evidence had
not been submitted which was sufficient to reopen the
previously-denied claim of entitlement to benefits under the
provisions of 38 U.S.C. § 1151 for the cause of the veteran's
death. To the Board's knowledge, the appellant has not
disagreed with that decision and it is therefore not in
appellate status. See Archbold v. Brown, 9 Vet. App. 124,
130 (1996) [pursuant to 38 U.S.C.A. § 7105(a), the filing of
a notice of disagreement initiates appellate review in the VA
administrative adjudication process, and the request for
appellate review is completed by the claimant's filing of a
substantive appeal after a statement of the case is issued by
VA].
FINDINGS OF FACT
1. The veteran died in March 2001 at the age of 63. The
cause of death was pancreatic carcinoma.
2. At the time of the veteran's death, service connection
was in effect for chronic urticaria of the hand, face and
trunk, tinnitus, and hearing loss.
3. The medical evidence of record does not indicate or even
suggest that a relationship exists between the veteran's
service and his death, to include consideration of his
service-connected disabilities and claimed exposure to
ionizing radiation.
CONCLUSIONS OF LAW
1. Service connection for the cause of the veteran's death
is not warranted. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. §
3.312 (2006).
2. The criteria for DIC benefits pursuant to 38 U.S.C. §
1318 have not been met.
38 U.S.C.A. § 1318 (West 2002); 38 C.F.R. § 3.22 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
In the interest of clarity, the Board will first discuss
certain preliminary matters. The Board will then render a
decision on the issues on appeal.
The Veterans Claims Assistance Act of 2000 (VCAA)
The Board has given consideration to the VCAA. The VCAA
includes an enhanced duty on the part of VA to notify a
claimant as to the information and evidence necessary to
substantiate claims for VA benefits. The VCAA also redefines
the obligations of VA with respect to its statutory duty to
assist claimants in the development of their claims. See
38 U.S.C.A. §§ 5103, 5103A (West 2002).
The VCAA alters the legal landscape in three distinct ways:
standard of review, notice and duty to assist. The Board
will now address these concepts within the context of the
circumstances presented in this case.
Standard of review
After the evidence has been assembled, it is the Board's
responsibility to evaluate the entire record. See 38
U.S.C.A. § 7104(a) (West 2002). When there is an approximate
balance of evidence regarding the merits of an issue material
to the determination of the matter, the benefit of the doubt
in resolving each such issue shall be given to the claimant.
See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2006).
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the
United States Court of Appeals for Veterans Claims (the
Court) stated that "a veteran need only demonstrate that
there is an 'approximate balance of positive and negative
evidence' in order to prevail." To deny a claim on its
merits, the preponderance of the evidence must be against the
claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996),
citing Gilbert, 1 Vet. App. at 54.
Notice
The VCAA requires VA to notify the claimant and the
claimant's representative, if any, of any information and any
medical or lay evidence not previously provided to VA that is
necessary to substantiate the claim. As part of the notice,
VA is to specifically inform the claimant and the claimant's
representative, if any, of which portion, if any, of the
evidence is to be provided by the claimant and which part, if
any, VA will attempt to obtain on behalf of the claimant.
See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v.
Principi, 16 Vet. App. 183 (2002) [a letter from VA to an
appellant describing evidence potentially helpful to the
appellant but not mentioning who is responsible for obtaining
such evidence did not meet the standard erected by the VCAA].
After having carefully reviewed the record, the Board has
concluded that the notice requirements of the VCAA have been
satisfied with respect to the issues on appeal. The Board
observes that the appellant was informed of the relevant law
and regulations pertaining to her claims in a letter from the
RO dated July 29, 2004, whereby the appellant was advised of
the provisions relating to the VCAA. Specifically, the July
2004 VCAA letter detailed the evidentiary requirements for
the appellant's cause of death ("it must be shown that the
condition causing the veteran's death had its onset in
service or was permanently aggravated by the military
service") and DIC claims ("we need evidence showing the
veteran died in service or medical evidence showing that the
veteran's service-connected conditions caused of contributed
to the veteran's death. We may also pay DIC if the veteran
was continuously rated totally disabled due to service-
connected conditions for at least 10 years before death").
Crucially, the appellant was advised in the July 2004 VCAA
letter that VA is responsible for obtaining relevant records
from any Federal agency, including service records, records
from SSA and any VA treatment records. With respect to
private treatment records, the July 2004 VCAA letter informed
the appellant that VA would make reasonable efforts to obtain
non-Federal evidence. The July 2004 letter further
emphasized: "You must give us enough information about your
records so that we can request them from the person or agency
that has them. If the holder of the records declines to give
us the records or asks for a fee to provide them, we'll
notify you of the problem. It's your responsibility to make
sure that we receive all requested records that aren't in the
possession of a Federal department or agency." [Emphasis in
original].
The Board notes that the July 2004 VCAA letter specifically
requested of the appellant: "If there is any other evidence
that you think will support your claim[s], please let us
know. If you have any evidence in your possession that
pertains to your claim[s], please send it to us." The Board
believes that this request complies with the requirements of
38 C.F.R. § 3.159 (b) in that it informed the appellant that
she could submit or identify evidence other than what was
specifically requested by the RO.
The appellant was not provided VCAA notice prior to the
adjudication of her claims in August 2003. The Board is of
course aware of the Court's decision in Pelegrini v.
Principi, 17 Vet. App. 412 (2004), which appears to stand for
the proposition that VCAA notice must be sent prior to
adjudication of an issue by the RO. Crucially, the appellant
was provided with VCAA notice through the July 2004 VCAA
letter and her claims were readjudicated in the October 2004
SSOC, after she was provided with the opportunity to submit
evidence and argument in support of her claims and to respond
to the VA notice. Thus, any VCAA notice deficiency has been
rectified, and there is no prejudice to the veteran in
proceeding to consider her claims on the merits. Neither the
appellant or her representative have pointed to any specific
prejudice resulting from the timing of the VCAA notice.
Finally, there has been a significant recent Court decision
concerning the VCAA. In Dingess v. Nicholson, 19 Vet. App.
473 (2006), the Court observed that a claim of entitlement to
service connection consists of five elements: (1) veteran
status; (2) existence of a disability; (3) a connection
between the veteran's service and the disability; (4) degree
of disability; and (5) effective date. Because a service
connection claim is comprised of five elements, the Court
further held that the notice requirements of section 5103(a)
apply generally to all five elements of that claim.
Therefore, upon receipt of an application for a service
connection claim, section 5103(a) and section 3.159(b)
require VA to review the information and the evidence
presented with the claim and to provide the claimant with
notice of what information and evidence not previously
provided, if any, will assist in substantiating or is
necessary to substantiate the elements of the claim as
reasonably contemplated by the application.
In this case, element (1), veteran status, is not at issue,
and elements (2) and (3) are irrelevant to the appellant's
claims. Moreover, elements (4) and (5), degree of disability
and effective date, are rendered moot via the RO's denial of
service connection for cause of the veteran's death and DIC
benefits. In other words, any lack advisement as to those
two elements is meaningless, because a disability rating and
effective date were not assigned. Because as discussed below
the Board is denying the appellant's claims, elements (4) and
(5) remain moot.
In short, the record indicates that the appellant received
appropriate notice pursuant to the VCAA.
Because there is no indication that there exists any evidence
which could be obtained which would have an effect on the
outcome of this case, no further VCAA notice is necessary.
See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA
notice not required where there is no reasonable possibility
that additional development will aid the claimant].
Duty to assist
In general, the VCAA provides that VA shall make reasonable
efforts to assist a claimant in obtaining evidence necessary
to substantiate claims for VA benefits, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claims. The law provides that the
assistance provided by VA shall include providing a medical
examination or obtaining a medical opinion when such an
examination or opinion is necessary to make a decision on the
claims. An examination is deemed "necessary" if the record
does not contain sufficient medical evidence for VA to make a
decision on the claims. See 38 U.S.C.A. § 5103A (West 2002);
38 C.F.R. § 3.159 (2005).
The Board finds that reasonable efforts have been made to
assist the appellant in obtaining evidence necessary to
substantiate her claims, and that there is no reasonable
possibility that further assistance would aid in
substantiating them.
The claims folder contains the veteran's VA and private
treatment records. Additionally, a VA medical nexus opinion
was obtained concerning the cause of the veteran's death in
May 2002. The report reflects that the examiner rendered an
appropriate nexus opinion which considered the relevant
evidence of record. There is no indication from the
appellant or her representative of any outstanding records.
Accordingly, the Board finds that under the circumstances of
this case, the VA has satisfied the notification and duty to
assist provisions of the law and that no further actions
pursuant to the VCAA need be undertaken on the appellant's
behalf.
The Board additionally observes that all appropriate due
process concerns have been satisfied. See 38 C.F.R. § 3.103
(2006). The appellant has been accorded the opportunity to
present evidence and argument in support of her claims. As
noted in the Introduction, the appellant failed to appear for
a personal hearing scheduled in July 2006 and did not ask
that such be rescheduled.
Accordingly, the Board will proceed to a decision on the
merits.
1. Entitlement to service connection for the cause of the
veteran's death pursuant to 38 U.S.C. § 1310, to include as a
result of exposure to ionizing radiation.
Relevant law and regulations
Service connection -- in general
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303
(2006).
In order to establish service connection for the claimed
disorder, there must be (1) medical evidence of a current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the current
disability. See Hickson v. West, 12 Vet. App. 247, 253
(1999). The determination as to whether these requirements
are met is based on an analysis of all the evidence of record
and the evaluation of its credibility and probative value.
See Baldwin v. West, 13 Vet. App. 1, 8 (1999).
Service connection-radiation exposure
A "radiation-exposed veteran" is defined by 38 C.F.R. §
3.309(d)(3) as a veteran who while serving on active duty or
on active duty for training or inactive duty training,
participated in a radiation-risk activity. The definition of
"radiation-risk activity" includes onsite participation in
a test involving the atmospheric detonation of a nuclear
device. 38 C.F.R. § 3.309(d) (2006).
Diseases specific to radiation-exposed veterans are the
following: (i) leukemia (other than chronic lymphocytic
leukemia); (ii) cancer of the thyroid; (iii) cancer of the
breast; (iv) cancer of the pharynx; (v) cancer of the
esophagus; (vi) cancer of the stomach; (vii) cancer of the
small intestine; (viii) cancer of the pancreas; (ix) multiple
myeloma; (x) lymphomas (except Hodgkin's disease); (xi)
cancer of the bile ducts; (xii) cancer of the gall bladder;
(xiii) primary liver cancer (except if cirrhosis or hepatitis
B is indicated); (xiv) cancer of the salivary gland; and (xv)
cancer of the urinary tract. 38 C.F.R. § 3.309(d)(2) (2006).
38 C.F.R. § 3.311 provides instruction on the development of
claims based on exposure to ionizing radiation. Pursuant to
38 C.F.R. § 3.311, "radiogenic disease" is defined as a
disease that may be induced by ionizing radiation, and
specifically includes the following: thyroid cancer, breast
cancer, bone cancer, liver cancer, skin cancer, esophageal
cancer, stomach cancer, colon cancer, pancreatic cancer,
kidney cancer, urinary bladder cancer, salivary gland cancer,
multiple myeloma, posterior subcapsular cataracts, non-
malignant thyroid nodular disease, ovarian cancer,
parathyroid adenoma, tumors of the brain and central nervous
system, cancer of the rectum, lymphomas other than Hodgkin's
disease, prostate cancer, and any other cancer. 38 C.F.R. §
3.311(b)(2)(i)-(xxiv) (2006).
Notwithstanding the above, the United States Court of Appeals
for the Federal Circuit has held that when a veteran is found
not to be entitled to a regulatory presumption of service
connection for a given disability the claim must nevertheless
be reviewed to determine whether service connection can be
established on a direct basis. See Combee v. Brown, 34 F.3d
1039, 1043-1044 (Fed.Cir.1994), reversing in part Combee v.
Principi, 4 Vet. App. 78 (1993). Thus, the Board must not
only determine whether the veteran has a disability which is
recognized by VA as being etiologically related to exposure
to ionizing radiation, but must also determine whether his
disability is otherwise the result of his active service.
Service connection - cause of death
In order to establish service connection for the cause of the
veteran's death, the medical evidence must show that
disability incurred in or aggravated by service either caused
or contributed substantially or materially to cause death.
38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2006).
The death of a veteran will be considered as having been due
to a service-connected disability when the evidence
establishes that such disability was either the principal or
a contributory cause of death. The issue involved will be
determined by exercise of sound judgment, without recourse to
speculation, after a careful analysis has been made of all
the facts and circumstances surrounding the death of the
veteran, including, particularly, autopsy reports. 38 C.F.R.
§ 3.312(a) (2006).
The service-connected disability will be considered as the
principal (primary) cause of death when such disability,
singly or jointly with some other condition, was the
immediate or underlying cause of death or was etiologically
related thereto. 38 C.F.R. § 3.312(b) (2006).
A contributory cause of death is inherently one not related
to the principal cause. In determining whether the service-
connected disability contributed to death, it must be shown
that it contributed substantially or materially; that it
combined to cause death; that it aided or lent assistance to
the production of death. It is not sufficient to show that
it casually shared in producing death, but rather it must be
shown that there was a causal connection. 38 C.F.R. §
3.312(c)(1) (2006); see also Gabrielson v. Brown, 7 Vet. App.
36, 39 (1994).
Generally, minor service-connected disabilities, particularly
those of a static nature or not materially affecting a vital
organ, would not be held to have contributed to death
primarily due to unrelated disability. In the same category
there would be included service-connected disease or injuries
of any evaluation (even though evaluated as 100 percent
disabling) but of a quiescent or static nature involving
muscular or skeletal functions and not materially affecting
other vital body functions. 38 C.F.R. § 3.312(c)(2) (2006).
Service-connected diseases or injuries involving active
processes affecting vital organs should receive careful
consideration as a contributory cause of death, the primary
cause being unrelated, from the viewpoint of whether there
were resulting debilitating effects and general impairment of
health to an extent that would render the person materially
less capable of resisting the effects of other disease or
injury primarily causing death. Where the service-connected
condition affects vital organs as distinguished from muscular
or skeletal functions and is evaluated as 100 percent
disabling, debilitation may be assumed. 38 C.F.R. §
3.312(c)(3) (2006).
Analysis
The appellant seeks service connection for the cause of the
veteran's death. In substance, she contends that exposure to
ionizing radiation in service caused or contributed to the
cause of his death. In other words, the appellant believes
that the veteran's in-service exposure ionizing radiation led
to his development of pancreatic carcinoma, which eventually
caused his death.
The Board initially notes that a review of the evidence does
not suggest that pancreatic carcinoma was present in service.
The veteran's service medical records are negative for any
pancreatic disease. Additionally, though pancreatic cancer
is considered one of the radiogenic diseases subject to
presumptive service connection for radiation-exposed veterans
[see 38 C.F.R. § 3.311(b)(2)(i)-(xxiv) (2006)], there is no
competent evidence of record that the veteran was ever
exposed to ionizing radiation in service, despite the
appellant's contentions. Indeed, after conducting an
investigation into the veteran's alleged exposure to ionizing
radiation in service, the Department of Veterans Affairs
issued a Memorandum dated October 4, 2004 which determined
that "there is sufficient evidence to conclude that the
veteran was not involved in or exposed to nuclear testing
during his active naval service." There is no competent
evidence to the contrary. Therefore, the appellant's
allegation that the veteran's pancreatic carcinoma which
ultimately led to his death was a result of exposure to
ionizing radiation in service is without merit.
Therefore, the appellant's claim that the veteran was not
exposed to ionizing radiation in service is without merit and
will be addressed no further.
In order to establish service connection for the cause of
death, there must be (1) evidence of death; (2) a service-
connected disability; and (3) medical evidence of a nexus
between the service-connected disability and death. Cf.
Hickson, supra. Here, element (1) is obviously met. In
addition, element (2) is satisfied. The crucial matter is
element (3), medical nexus.
Neither the terminal hospitalization report nor the death
certificate referred to the veteran's service-connected
disabilities (urticaria, tinnitus, and hearing loss). The
Board views this as competent medical evidence against the
appellant's claim of entitlement to service connection for
the cause of the veteran's death.
See 38 C.F.R. § 3.312(a) (2006), supra.
Moreover, a thorough review of the medical treatment records
does not indicate that any health care provider made any
connection between the veteran's service-connected
disabilities and his death. This is also significant
evidence. See Forshey v. West, 12 Vet. App. 71, 74 (1998),
aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed.
Cir. 2002) [the definition of evidence encompasses "negative
evidence" which tends to disprove the existence of an
alleged fact, i.e., the lack of evidence is itself evidence].
The only evidence in the appellant's favor is her own
statements to the effect that she believes that the veteran's
in-service exposure to ionizing radiation somehow caused his
death. It is now well established, however, that as a lay
person without medical training she is not competent to opine
on medical matters. See Espiritu v. Derwinski, 2 Vet. App.
492, 494-5 (1992); see also 38 C.F.R. § 3.159 (a)(1)
[competent medical evidence means evidence provided by a
person who is qualified through education, training, or
experience to offer medical diagnoses, statements, or
opinions]. The appellant's statements are accordingly
entitled to no weight of probative value.
As has been discussed in connection with the VCAA above, the
appellant has been accorded ample opportunity to provide
crucial medical nexus evidence. She has not done so. See
38 U.S.C.A. § 5107(a) [it is the claimant's responsibility to
support a claim for VA benefits].
In short, there is no competent medical evidence which
supports the appellant's contentions to the effect that any
of the veteran's service-connected disabilities caused or
contributed to the cause of his death, or that such was due
to exposure to ionizing radiation in service. Indeed, there
is competent medical evidence to the contrary. A
preponderance of the evidence is therefore against the claim.
Element (3) has not been met, and the appellant's claim fails
on that basis. The benefit sought on appeal is accordingly
denied.
Conclusion
In short, there is no competent medical evidence which
supports the appellant's contentions to the effect that any
of the veteran's service-connected disabilities caused or
contributed to the cause of his death, or that such was a
result of exposure to ionizing radiation in service. A
preponderance of the evidence is therefore against the claim.
Element (3) has not been met, and the appellant's claim fails
on that basis. The benefit sought on appeal is accordingly
denied.
2. Entitlement to Dependency and Indemnity Compensation
(DIC) pursuant to 38 U.S.C.A. § 1318.
Relevant law and regulations
Under 38 U.S.C.A. § 1318, VA death benefits may be paid to a
deceased veteran's surviving spouse in the same manner as if
the veteran's death is service-connected, even though the
veteran died of non-service-connected causes, if the
veteran's death was not the result of his or her own willful
misconduct and at the time of death, the veteran was
receiving, or was entitled to receive, compensation for
service-connected disability that was rated by VA as totally
disabling for a continuous period of at least 10 years
immediately preceding death; or was rated totally disabling
continuously since the veteran's release from active duty and
for a period of not less than five years immediately
preceding death; or was rated by VA as totally disabling for
a continuous period of not less than one year immediately
preceding death if the veteran was a former prisoner of war
who died after September 30, 1999. The total rating may be
either schedular or based upon unemployability. See 38
U.S.C.A. § 1318 (West 2002).
In January 2000, prior to the veteran's death and the
appellant's DIC claims, VA amended 38 C.F.R. § 3.22 (the
implementing regulation for 38 U.S.C.A. § 1318) to restrict
the award of DIC benefits to cases where the veteran, during
his or her lifetime, had established a right to receive total
service-connected disability compensation for the period of
time required by 38 U.S.C.A. § 1318, or would have
established such right but for clear and unmistakable error
(CUE) in the adjudication of a claim or claims. Accordingly,
as amended, the regulation specifically prohibited
"hypothetical entitlement" as an additional basis for
establishing eligibility to DIC benefits. See 65 Fed. Reg.
3,388 (Jan. 21, 2000).
In August 2001, VA suspended the adjudication of claims for
DIC benefits under the provisions of 38 U.S.C.A. § 1318, due
to a temporary stay on the adjudication of such claims that
was imposed by the United States Court of Appeals for the
Federal Circuit (Federal Circuit) in National Organization of
Veterans' Advocates, Inc., v. Secretary of Veterans Affairs,
260 F.3d 1365 (Fed. Cir. 2001). In that decision, the
Federal Circuit directed the Department to conduct expedited
rulemaking which would either explain why certain
regulations-- 38 C.F.R. § 3.22 and 38 C.F.R. § 20.1106 --
were inconsistent or revise the regulations so that they are
consistent.
The Department then revised 38 C.F.R. § 20.1106 to bring it
into conformity with 38 C.F.R. § 3.22. In an order issued
January 10, 2003, the Federal Circuit lifted the stay on
adjudication of 38 U.S.C.A. § 1318 claims, unless the claim
was based on the receipt of new and material evidence.
Because the appellant's claim does not involve the submission
of new and material evidence, the Board may now proceed to
adjudicate her DIC claim.
Analysis
The appellant seeks entitlement to DIC benefits under the
provisions of 38 U.S.C. § 1318. Neither the appellant nor
her representative have made any specific contentions as to
why she is entitled to DIC benefits under section 1318.
In order for DIC benefits to be awarded to the appellant
under the provisions of 38 U.S.C.A. § 1318, it must be
established that the veteran received or was entitled to
receive compensation for a service-connected disability at
the rate of 100 percent for a period of 10 years immediately
preceding his death. [It is undisputed that the veteran was
not a former prisoner of war and was not continuously rated
totally disabling for a period of not less than five years
from the date of his discharge from active duty, which was in
1958, so those parts of § 1318 are clearly not applicable.]
The evidence of record at the time of the veteran's death
shows that he had established service connection for chronic
urticaria of the hands, face and trunk, evaluated as 30
percent disabling from September 14, 1999; tinnitus,
evaluated as 10 percent disabling from September 27, 1999;
and hearing loss, evaluated as noncompensably (zero percent)
disabling from September 27, 1999. The combined disability
rating for these three service-connected disabilities was 40
percent. Hence, the veteran was not in receipt of a total
disability rating as required under 38 U.S.C.A. § 1318(b).
Therefore, the appellant is not eligible for DIC benefits
under § 1318(b) on the grounds that the veteran had actually
been in receipt of, or actually established entitlement to, a
total rating for 10 years prior to his death. The evidence
clearly indicates that he was not. See 38 C.F.R. § 3.22
(2006).
The Board must address the question of whether the veteran
was "entitled to receive" compensation for service-
connected disability that was rated by VA as totally
disabling for a continuous period of at least 10 years
immediately preceding death. According to the only
subsection of 38 C.F.R. § 3.22 potentially applicable in this
case (because the other subsections of the regulation involve
other circumstances inapplicable here such as the withholding
or waiver of payment), "entitled to receive" means that, at
the time of death, the veteran had service-connected
disability rated totally disabling by VA but was not
receiving compensation because the veteran had applied for
compensation but had not received total disability
compensation due solely to clear and unmistakable error in a
VA decision concerning the issue of disability evaluation or
effective date.
See 38 C.F.R. § 3.22(b)(3) (2006).
In this case, there is no specific contention in the record
that any rating decision addressing the evaluation of the
veteran's service-connected disability was clearly and
unmistakably erroneous. There were no claims for service
connection pending at the time of the veteran's death in
March 2001. Accordingly, there is no evidence that the
veteran qualified for a total disability rating at the time
of his death, let alone for 10 continuous years prior
thereto.
Conclusion
In short, as the veteran was not rated by VA as totally
disabled for a continuous period of at least 10 years
immediately preceding his death, there is no legal basis for
entitlement to DIC under 38 U.S.C.A. § 1318. See Sabonis v.
Brown, 6 Vet. App. 426, 430 (1994) [in a case where the law
and not the evidence is dispositive, a claim must be denied
because of the absence of legal merit or the lack of
entitlement under the law].
ORDER
Entitlement to service connection for the cause of the
veteran's death is denied.
Entitlement to DIC benefits under the provisions of 38 U.S.C.
§ 1318 is denied.
____________________________________________
K. Parakkal
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs